영업양수인의 책임 요건으로서의 상호의 계속 사용

Abstract

This thesis aims to suggest reasonable conditions of application considering the purpose of the legislation of the article 42 of the Commercial Law and to review relevant cases and theories. Particularly, it is necessary to type the cases in order to acknowledge the responsibilities of the transferees who continue to use the store name or the trade name of the transferors. Clause 1, Article 42 of the Commercial Law acknowledges the responsibility of the transferee on the creditor of the transferor. This is a clause to protect the creditor who would find it difficult to learn about the business transfer when the transferee keeps the trade name of the transferor. The precedents tend to significantly ease the conditions of application of the article 42 of the Commercial Law. 1. The precedents consider the trade names the same and acknowledge the continued use when the trade names, before and after the transfer, share the main parts of the name. The reason why the article 42 holds the transferee responsible is because the existing clients might not be able to realize that there had been a business transfer when the trade name remains the same. Therefore, the precedents seem to have weakened the purpose of the legislation. In cases where the creditors are not able to find out about the transfer because of the same trade name continues to be used after the transfer, the article 42 has to be applied. A broader interpretation has to be restrained and the interpretation standards have to be stricter. 2. According to the Japanese precedents, the clause 1 of the article 42 of the Commercial Law can be applied when the name that states the owner of the business (store name) is kept even though the trade name is not kept. It would not be easy to cause a misunderstanding of the identity of the business owner by simply keeping the brand name or a logo. However, the identical trade name is not the only factor that causes the creditor to believe in the identical business owner. Especially, the store name commonly identifies the business owner, though it is not a trade name. When the store name identifies the business owner, it is possible to analogically apply the article 42 of the Commercial Law. This can be used as a reference when similar cases emerge in Korea.